Author: Tans, Simon

Source: European Journal of Migration and Law, Volume 10, Number 2, 2008 , pp. 249-275(27)

Publisher: Martinus Nijhoff Publishers, an imprint of Brill

Abstract:

This case report examines the ECJ cases Laval and Viking focusing on three important issues. First, regarding Directive 96/71/EC and the posting of workers, the report provides a clarification of the key arguments submitted in the Laval case explaining that the collective agreement at issue falls outside the scope of the Directive. In doing so, background information on relevant rules and cases on cross-border posting of workers will be provided. Second, the report explains the Court's approach to horizontal implications of Articles 43 EC and 49 EC for trade unions. It is submitted that the Court uses the same, well-known, approach used earlier in regard to sporting associations and bar associations. Such private entities can, under specific circumstances, have the obligation to act in conformity with Articles 43 EC and 49 EC. Due attention is given to possible justification grounds. Finally, this case note investigates the implications of Laval and Viking from a fundamental rights perspective. The Court recognises collective action as a fundamental right under Community law, thereby relying on the Charter of fundamental rights. The use of this source by the ECJ receives specific attention as does the relationship between fundamental freedoms and fundamental rights.

Keywords: FREEDOM TO PROVIDE SERVICES; FREEDOM OF ESTABLISHMENT; DIRECTIVE 96/71/EC; HORIZONTAL DIRECT EFF ECT; PRIVATE ENTITIES; POSTING OF WORKERS; SOCIAL DUMPING; COLLECTIVE ACTION; FUNDAMENTAL RIGHTS; CHARTER OF FUNDAMENTAL RIGHTS

Document Type: Case report

DOI: http://dx.doi.org/10.1163/157181608X317363

Affiliations: 1: Radboud University Nijmegen, the Netherlands

Publication date: 2008-09-01

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